Court No. - 62 Case :- WRIT - A No. - 13677 of 2001 Petitioner :- Ravi Mohan Sharma Respondent :- D.I.O.S. Agra & Others Counsel for Petitioner :- Ashok Bhushan,Adarsh Bhushan,Anil Bhushan Counsel for Respondent :- C.S.C.
Hon'ble Rajiv Joshi,J.
Heard learned counsel for the petitioner and learned Standing Counsel appearing for State respondents.
Since, the pleadings between the parties have already been exchanged, therefore, with the consent of counsel for the parties, this writ petition is being disposed of finally at the admission stage itself in terms of Rules of the Court.
This writ petition has been filed under Article 226 of the Constitution of India for quashing the order dated 11.1.2001 passed by District Inspector of Schools, Agra and a direction in the nature of mandamus commanding the respondents to treat the petitioner as ad-hoc L.T. Grade Teacher and pay him salary with effect from his deemed approval i.e. 14.3.1997 as also the monthly regular salary.
The facts as reflect from the record are thus:
There is an institution known as Moti Lal Inter College, Sainya, Agra, (hereinafter referred to as Institution), which is recognized under the provisions of U.P. Intermediate Education Act, 1921 and is governed by the provisions of U.P. High School and Intermediate Colleges (Payment of Salary to Teachers and Other Employees) Act, 1971.
On account of adhoc promotion of Sri Ram Awtar Tripathi, a short term vacancy in L.T. Grade arose in the Institution. The Committee of Management proceeded to make adhoc appointment on the said short term vacancy of Assistant Teacher in L.T. Grade and issued advertisement on 11.2.1997 published in the newspaper 'Swaraj Times'.
Pursuant to the advertisement, petitioner along with 11 other candidates appeared for selection, which was held on 19.2.1997. The selection committee recommended the name of the petitioner for the post of Assistant Teacher in L.T. Grade as he had secured maximum quality marks. Subsequently, the Committee of Management passed a resolution on 20.2.1997 approving adhoc appointment of the petitioner on the said short term vacancy and entire papers relating to his selection were submitted to the D.I.O.S on 6.3.1997. Since the Institution required teachers, therefore, the management issued appointment letter to the petitioner on 21.2.1997 and in pursuance thereof, he joined the Institution on 1.3.1997 but no salary was paid to him.
Aggrieved the petitioner filed Writ Petition No. 30687 of 1997 for issuance of a writ of mandamus commanding respondents to pay salary to him on the post of Assistant Teacher in L.T. Grade. This writ petition was finally disposed of with a direction to the D.I.O.S to decide the petitioner's representation within a period of two months. Subsequently, vide order/letter dated 27.1.1999 of the D.I.O.S, representation of the petitioner was dismissed on the ground that as there is a ban on appointments, therefore, it is not possible to approve petitioner's appointment.
Subsequently, another Writ Petition No. 39651 of 1999 was filed by the petitioner, which was disposed of on 16.9.1999 permitting the petitioner to file representation, which was directed to be decided by the D.I.O.S within two weeks. In pursuance thereof, the petitioner represented the matter and the D.I.O.S proceeded with the case and rejected the petitioner's representation vide impugned order dated 11.1.2001 and refused to approve the appointment. The said order is impugned in the writ petition.
The impugned order has been passed by the D.I.O.S on the following grounds:
(i) Papers of the petitioner's selection for approval was submitted by the Committee of Management on 6.3.1997, whereas the appointment letter was issued to him on 21.2.1997 and the petitioner was permitted to join on 1.3.1997.
(ii) The advertisement was published only in one newspaper, although it ought to have been published in two newspapers.
(iii) Prior to the advertisement, the District Inspector of Schools was not given any information nor any permission was taken from the District Inspector of Schools.
(iv) The list of quality point marks does not mention in marks for interview.
(v) There is no post vacant in the Institution.
Learned counsel for the petitioner submitted that the issuance of appointment letter to the petitioner prior to approval was only an irregularity and not in any way affecting the validity of the appointment letter. It is further submitted that petitioner was entitled for salary from the date of approval/deemed approval. In support of his contention, he has placed reliance uopn a Division Bench judgment in the case of Ashika Prasad Shukla Vs. District Inspector of Schools, Allahabad and another, (1998) 3 UPLBEC 1722.
On the other hand, counter affidavit has been filed on behalf of respondent no.1 reiterating the same stand as taken in the impugned order.
I have considered the argument of learned counsel for the petitioner in this regard.
The appointment of the petitioner has been made on short term vacancy under the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981. Papers relating to his selection were sent to the D.I.O.S on 6.3.1997, but the D.I.O.S did not take any decision either to approve or disapprove the appointment.
Paragraph 2 (3) (iii) of the Second Removal of Difficulties Order, 1981, reads thus:
“The District Inspector of Schools shall communicate his decision within seven days of the date of particulars by him failing which the Inspector will be deemed to have given his approval.”
Thus, in terms of the above provision, the adhoc appointment of the petitioner stood approved since no communication was made by the D.I.O.S within a week from the date of receipt of papers.
A reading of the above quoted provision makes it clear that District Inspector of Schools shall communicate his decision within 7 days of receipt of particulars by him failing which the Inspector will be deemed to have given his approval.
So far as the point that appointment letter was issued prior to sending approval papers to the District Inspector of Schools by the Management is concerned, this issue has been dealt with in the Division Bench decision in the case of Ashika Prasad Shukla (supra), the relevant part of which reads as under:
“Paragraph 2(3)(iv) of the Second Removal of Difficulties Order is not phrased in a prohibitory language as was the language used in Section 16-F(1) of the U.P. Intermediate Education Act, 1921. The words 'prior approval' have been used in sub-clause(ii) of paragraph 2(3) of the Second Removal of Difficulties Order and a conjoint reading of sub-clauses (ii),(iii) and (iv) of clause (3) of paragraph 2, no doubt, leads to an inescapable conclusion that the appointment would be issued under the signature of the Manager only on the approval having been communicated by the District Inspector of Schools within seven days of the receipt of the papers or where the approval is deemed to have been accorded as visualized by sub-clause (iii) of clause (3) of paragraph 2 of the Second Removal of Difficulties Order. However, appointment if made prior to approval or deemed approval, would become effective from the date of approval of deemed approval as held by the Division Bench of this Court in Lalit Mohan Misra. There is nothing on the record to connote that pre-requisite conditions attracting deemed approval were not satisfied in the instant case."
Therefore, as per law laid down by the Division Bench, issuance of the appointment letter prior to sending papers for approval, at the most can be termed an irregularity, but the petitioner shall be entitled for his salary from the date of deemed approval.
In view of the above discussion, the first ground in the impugned order cannot be sustained.
So far as the second ground is concerned, there is no requirement under the Second Removal of Difficulties Order, 1981 that the advertisement should be published in two newspapers. The only requirement as per Section 2 (3) (i) of the Second Removal of Difficulties Order, 1981 is that the management shall notify the same on the notice board of the Institution.
Here in the present case, the advertisement was issued in newspaper 'Swaraj Times', which is a widely circulated newspaper in District Aligarh and its adjoining areas and in pursuance of said advertisement, 12 candidates had applied. The advertisement in one newspaper is substantial compliance of the provision.
As regards, the third ground taken in the impugned order that no prior approval has been taken from the D.I.O.S prior to publication of the advertisement, it may be pointed out here that as per Section 2 (3) (i) of the Second Removal of Difficulties Order, 1981, there is no requirement of taking any approval from the D.I.O.S either prior to issuance of selection procedure and only the vacancy has to be intimated. The ground taken in this regard by the D.I.O.S is totally imaginary and without any substance.
In regard to the fourth ground taken in the impugned order that the list of quality point marks does not mention any marks for interview, submission of learned counsel for the petitioner is that under the rules, no marks for the interview are required to be mentioned and the entire selection has to be taken on the basis of quality point marks for filling up short term vacancy.
I have considered the submission of learned counsel for the petitioner. Section 2 (3) (i) of the Second Removal of Difficulties Order, 1981 provides that selection shall be made on the basis of quality point marks specified under the appendix to the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981. In the said appendix, there is no requirement for allotting any marks for interview.
The last point that when the petitioner was appointed, there was no vacant post. In this regard, it is stated that the petitioner's appointment was on short term vacancy caused due to adhoc promotion of Sri Ram Awtar Tripathi, lecturer, who was working as a permanent Assistant Teacher in L.T. Grade. The appointment is adhoc in respect of short term vacancy. There is no fresh appointment and therefore, the said ground does not appear to be just and relevant.
As a result of aforesaid discussion, the writ petition succeeds and is allowed. The order impugned dated 11.01.2001 passed by the D.I.O.S is quashed. The District Inspector of Schools is directed to accord approval to appointment of the petitioner provided the petitioner is still working. There will be no order as to costs.
Order Date :- 28.3.2018 Noman